Tobacco Firms Ordered to Give Up Secret Files

In a devastating defeat for the tobacco industry, a Minnesota judge Saturday ordered the nation’s major cigarette companies to turn over 39,000 confidential documents that they waged a long, bitter and expensive battle to keep secret. The judge ruled that the papers show evidence of crime or fraud.

An outline of some of the documents, described in a 140-page report by a special master in the case, indicates that the papers represent the clearest evidence to date of the lengths to which the industry went to suppress evidence about the health hazards of its products and how it manipulated nicotine to keep smokers addicted.

The master’s report, unsealed Saturday, also represents the most comprehensive assessment yet by a judicial officer of the stark contradictions between the companies’ public positions and what their internal documents show that they knew in private.

The report contains page after page of descriptions of material the industry tried to keep from the public on a host of topics for over four decades. Some of the most dramatic examples:

* The master said that R.J. Reynolds Tobacco Co. was trying to keep confidential a 1957 memo by company scientist Alan Rodgman titled: “Cigarette Smoking Termed Lethal Habit With Some Addiction Involved.”

* A 1959 report by the British American Tobacco Co. expressed fears about “destroying the nicotine habit in a large number of consumers and preventing it ever being acquired by new smokers.”

* A 1961 report by BATCO scientist Sir Charles Ellis referred to smokers as “nicotine addicts.” That was 27 years before the U.S. surgeon general issued a report characterizing smoking as “addictive.”

* An undated Brown & Williamson Tobacco Corp. document described company research on the “starting [smoking] behavior of children as young as 5 years old.”

* Documents from BATCO and Philip Morris about shipping material “off-shore” or to other countries to keep them secret.

Attorneys for the major cigarette companies maintained that Ramsey County District Judge Kenneth J. Fitzpatrick’s ruling is legally and factually flawed and will be appealed as soon as possible. The attorneys said they do not intend to voluntarily comply with the order to turn over the documents by 8 a.m. Monday in St. Paul.

But Minnesota Atty. Gen. Hubert H. Humphrey III called the ruling “one of the most monumental public health decisions in American history. . . . The tobacco industry’s 40-year game of hide-and-seek has ended.”

Humphrey predicted that when members of Congress--currently considering a proposed $368.5-billion national tobacco settlement--”see the pervasiveness of the fraud and conspiracy” revealed in the papers, “they will demand action to truly protect kids from addiction and disease without giving this outlaw industry the special immunity and protection it so desperately seeks.”

Last month, Rep. Thomas J. Bliley (R-Va.) subpoenaed the 39,000 documents, shortly after Mark Gehan, the special master, had issued a brief report Feb. 10, saying that the state of Minnesota and its co-plaintiff, Blue Cross/Blue Shield of Minnesota, were entitled to 39,000 of 240,000 confidential documents they had been seeking.

But Gehan’s full 140-page report to Fitzpatrick was not made public until Saturday. In making it public, Fitzpatrick stated that, with some limited exceptions, Gehan’s report was “well-reasoned and supported by the law and by the evidence on the record.”

As part of his ruling, Fitzpatrick denied the cigarette companies’ request for a stay of the order pending appeal.

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Among the other highlights, Gehan’s report:

* Lists voluminous documents about a “gentleman’s agreement” among the cigarette companies not to conduct in-house research about the health hazards of smoking.

* Contains references to scores of documents about company efforts to enhance the amount of nicotine in cigarettes, including a 1977 BATCO document describing discussions among its scientists about the possible use of the drug etorphine, noting that it “is 10,000 times as effective an analgesic as morphine and has addictive characteristics.”

* Contains a description of admissions by one of the industry’s own experts in the Minnesota case that “stopping smoking, all the research indicates, is quite as difficult as giving up alcohol or even heroin.”

* Refers to previously secret internal documents in which ranking company scientists openly talk about the addictive qualities of their products, while they were denying this in public. In one BATCO document, S.J. Green, a top company scientist, states that “smoking is fairly irrational like other drug dependencies.” In another, Green referred to “members of the nicotine dependent majority.”

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The industry has contended for years that there is no definitive proof that smoking is hazardous to health or is addictive, and although it has retreated somewhat from those positions, executives of two of the nation’s largest cigarette companies only last week sparred over the definition of addiction with attorneys representing Minnesota in its $1.7-billion lawsuit against the industry.

Gehan’s report quoted documents from all the cigarette companies, as well as the Council for Tobacco Research, the industry’s research arm, and the Tobacco Institute, its lobbying wing. After quoting numerous internal documents in which the companies acknowledge the health hazards of their products, Gehan cites examples of industry press releases denying dangers.

One of the most striking is a 1972 Tobacco Institute press release issued shortly after the release of a surgeon general’s report that described cigarette smoking as the nation’s top health problem.

“The 1972 report of the Surgeon General,” the press release said, “insults the scientific community. . . . The number one health problem is not cigarette smoking, but is the extent to which public health officials may knowingly mislead the American public.”

Along the same line, Gehan quotes several internal RJR documents to illustrate the disparity between the company’s public and private positions.

For example, he quotes a 1959 paper by scientist Rodgman that concluded that there is a “distinct possibility” that substances in cigarette smoke could have a carcinogenic effect and a 1962 Rodgman paper stating, “‘The amount of evidence accumulated to indict cigarette smoke as a health hazard is overwhelming, [while] the evidence challenging the indictment is scant.”

Then, Gehan quotes a 1983 RJR advertisement that said: “It has been stated so often that smoking causes cancer, it’s no wonder most people believe this is an established fact. But, in fact, it is nothing of the kind. The truth is that almost three decades of research have failed to produce scientific proof for this claim. . . . “

The master’s report is particularly stinging about the conduct of industry lawyers and the role they played in suppressing the hazards of cigarettes.

Gehan put special emphasis on a 1970 memo by David Hardy, a key industry lawyer, who warned Brown & Williamson’s general counsel against the dangers of open discussion by company scientists of the health risks of smoking. Gehan said this document, one of many dealing with “the control or suppression of research, and the creation of privilege shields to conceal possession of dangerous information, is particularly disturbing because it was written by a member of the firm [Kansas City’s Shook, Hardy & Bacon] which has for decades represented the tobacco industry.”

There are also several references to memos by B&W; in-house attorney J. Kendrick Wells about the need to shield scientific papers by routing them to lawyers. Minnesota has announced that it will call Wells as a witness in the case.

In his order, Fitzpatrick also lambasted industry lawyers for making spurious claims of attorney-client privilege in an attempt to keep documents confidential. He also said that the industry had mislabeled documents as part of that effort.

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In particular, he cited a Brown & Williamson document that had been placed in category called “advertising,” one of the categories where, the master said, the industry’s papers were entitled to confidentiality.

In reality, the judge said, the document dealt with research conducted among 16-to-17-year-olds. The document said:

“The research examined the behaviour of youth toward starting, smoking and quitting and their attitudes to these activities. . . . The studies reported on youngsters’ motivation for starting, their brand preferences, etc. as well as the starting behaviour of children as young as 5 years old.”

Fitzpatrick said this document was an example of the companies’ “blatant abuse” of a categorization process that he had set up to aid the special master in reviewing selected batches of documents on which the defendants had claimed privilege.

In addition to ordering the industry to turn over the documents Monday morning, Fitzpatrick dealt the companies another body blow. He directed the special master to reconsider an earlier decision that prevented attorneys for the state of Minnesota from obtaining thousands more cigarette company documents dealing with youth smoking and advertising.

In seeking to obtain the material, lawyers for the state, led by Michael Ciresi and Roberta Walburn, worked off so-called “privilege logs” that gave cryptic descriptions of the subject matter of internal industry papers, along with the author, recipient and date of a document.

In his report, Gehan rejected the companies’ argument that the plaintiffs had “cherry-picked” a limited number of documents that were unrepresentative.

“I . . . note that defendants have not disputed the content of these documents,” Gehan said in regard to a large group dealing with nicotine addiction and the use of ammonia to enhance nicotine delivery to smokers.

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“It is also noteworthy that these documents were written primarily by senior scientists and research officials at defendant companies. Finally, defendants have failed to present evidence from their own internal files to support their allegation that plaintiffs’ selection is unrepresentative of defendants’ actual knowledge regarding addiction.”

In fact, Gehan stressed that there was evidence that it was the defendants who had cherry-picked, selectively employing claims of privilege to shield certain information from discovery while producing certain other information. As a prime example, Gehan cites a 1996 RJR document introduced in this case on the issue of nicotine manipulation, which states that some of its earlier research on increasing the pH of nicotine was wrong.

“Reynolds . . . has produced this memo, since it provides a more favorable interpretation of previous (contemporaneous) internal memoranda,” Gehan said, adding he did not find the document persuasive. “Numerous contemporaneous documents from the internal files of defendants are more persuasive evidence than isolated documents created by defendants for litigation purposes.”

Many of the documents that the judge ordered disclosed are papers that passed between industry lawyers and their clients.

Traditionally, such material is protected under what is known as the attorney-client privilege, a long-standing legal doctrine designed to encourage candid communications between lawyers and the people they represent. However, the privilege can be breached if a judge decides that the papers show evidence of crime or fraud.

Both Gehan and Fitzpatrick have made prior rulings that there was evidence of crime or fraud in ordering the release of other material that the companies tried to keep secret in the case.

Several industry lawyers said Saturday that they would challenge the ruling.

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Philip Morris attorney Michael York maintained that the judge’s order was “wrong on numerous legal issues. We are deciding now among the companies on how best to mount the appeal.”

David Bernick, a Chicago attorney who represents Brown & Williamson and its BATCO affiliate, called Fitzpatrick’s ruling “a fundamentally flawed order in a fatally flawed trial.”

Bernick, a law partner of Whitewater independent counsel Kenneth W. Starr, asserted that Fitzpatrick “has ordered the production of literally thousands of privileged documents which have never even been reviewed by the court. . . . There is nowhere to be found the document-by-document review and findings that are the essence of the due process requirements that have been set by the U.S. Supreme Court for crime-fraud determinations.”

Months ago, Fitzpatrick said it would take several years for a judge to review the hundreds of thousands of documents for which the industry claimed privilege. He said that would unacceptably delay the trial and thus be unfair to the plaintiffs. Fitzpatrick then instituted a procedure whereby the special master would review documents in categories and then make rulings on claims of privilege. He said that such a procedure could be used without violating the defendants’ right to due process, citing prior instances where this had been done.

Times librarian William Holmes contributed to this story.

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The Tobacco Files

Here are some excerpts from confidential documents that major cigarette companies were ordered to release:

* A 1957 memo by an R.J. Reynolds Tobacco Co. scientist was titled: “Cigarette Smoking Termed Lethal Habit, With Some Addiction Involved.”

* One of the industry’s experts says that “stopping smoking, all the research indicates, is quite as difficult as giving up alcohol or even heroin.”

* A 1961 report by a British American Tobacco Co. scientist referred to smokers as “nicotine addicts,” 27 years before the U.S. surgeon general called smoking addictive.

* Another of the company’s scientists says that “smoking is fairly irrational like other drug dependencies,” and he refers to “members of the nicotine dependent majority.”

* One document says: “The research examined the behaviour of youth toward starting smoking and quitting and their attitudes to these activities. . . . The studies reported on youngsters’ motivation for starting, their brand preferences, etc. as well as the starting behaviour of children as young as 5 years old.”

* One scientist concludes in a 1959 paper that there is a “distinct possibility” that substances in cigarette smoke could have a carcinogenic effect.

* A 1962 paper states: “The amount of evidence accumulated to indict cigarette smoke as a health hazard is overwhelming, [while] the evidence challenging the indictment is scant.”

* One 1977 document describes discussions among a company’s scientists about the possible use of the drug etorphine, noting that it “is 10,000 times as effective an analgesic as morphine and has addictive characteristics.”

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Times librarian William Holmes contributed to this story.